H-1B

Often, when coming to America, all visitor visas are labeled as Non-immigrant visas. This means that the person applying for the visa must demonstrate that they have no intentions on becoming a US citizen or permanent resident; basically no intentions on immigrating to America permanently. With that, the applicant almost always must demonstrate strong ties to their home country and show the visa interview officer that they will certainly return to their home country as soon as they are done with whatever they were doing in America. With these visas, it is always dangerous if you showed any intentions on immigration, such as having applied for green card or having a serious relationship with someone who lives in America. If you enter the country on a non-immigrant visa and you attempt to apply for green card too soon, such as within 90 days, your green card application will be denied because you entered the country under false intentions (you claimed you don’t want to immigrate to America but you filed for immigration). Other situations that may cause you to be denied entry is being on a non-immigrant visitor visa and file for green card, then leaving for a vacation/visit and re-enter on the same non-immigrant visa. If you already filed for a green card, you already demonstrated without a doubt that you have full intentions on immigrating to America. The USCIS/CBP will NOT let you in the country on a non-immigrant visa!

So, the main point is that you must always use the appropriate “intentions” with the appropriate visa. This means that if you do intend on immigrating, you should use a immigration visa. If you really just want to visit/stay in America for a period of time and then return to your home country, then by all means use the non-immigrant visitor visas. However, there are some exceptions to this rule. The USCIS recognizes that there are some visas that really don’t apply to these “intentions” rules. These visas are categorized as non-immigrant visas, but the USCIS is fully aware and probably expect the visa holder to file for green cards in the future. For some reason this is OK, probably because USCIS expects what you will do, instead of trying to outsmart them. These visas are called dual intent visas. Dual intent visas allows the individual to enter as a non-immigrant (meaning they intend on returning to their home country after their stay is over), but with the option to file for green cards if they are able to. Here are some of the common dual intent visas:

H-1B and H-4 Visas

The most common dual intent visas has to be the H-1B visas. (Other H visas do not qualify, like H-2 H-3)These are the visas issued to skilled workers that are taking jobs that require specialized skills which no Americans could be found to do. The majority of these visas are of Indian nationals. They are your IT workers, software developers and anything to do with engineering. Although these visas are issued under the pretense that these skilled workers are only working temporarily in America, the USCIS knows very well that their employers usually will file a EB-2 based green card for them. So, even though H-1B is categorized as a non-immigrant visa, it is a dual intent visa meaning that the visa holder is free to demonstrate their intentions on becoming a permanent US resident at any time. If the H-1B visa holder files for green card, they can still leave and re-enter the country on the H-1B visa because the USCIS knows that they have immigration intentions. H-4 visas are simply the dependent visas of the H-1B visa holder. Recently, the USCIS even changed the rules for H-4 visas regarding employment so that any H-1B visa holder who files for green card, can also apply for their H-4 dependents to begin working legally without restrictions in America, before the green card application is issued. Therefore, for a H-1B worker entering America, he can say to the CBP officer that he wants to permanently immigrate to America upon his entry and the CBP officer would just give him a smile.

K Visas

The next most common dual intent visa is the K visas. This visa, the K-1, K-3 and K-2, K-4 visas (K-2 is the dependents of K-1, K-4 is dependent of K-3), really should be a fully stated immigrant visa. The K visa is designed for someone who is living outside America to come to America to get married to a US citizen or someone who is already married to a USC and has a green card application pending. If this is not a clear intention of immigration, I don’t know what is. However, for some reason, the USCIS classifies K visas as non-immigrant visas. Maybe it is because technically the K-1 visa holder has 90 days to decide if they want to marry the US citizen and live in America. There are times when people get here, realize their US citizen fiance is not good, or that they don’t like America, and decide to leave. Maybe K-3 visa holders come to America and realize their home country is more suitable and will convince the USC spouse to leave. Regardless, anyone who enters on a K visa is considered dual intent and the USCIS will have no issues with them filing for green cards.

L Visas

Another common dual intent is the L visa. The L visa is designed for a multinational corporation to transfer its employees from another country into its American offices. The L visas are issued to people who transfer, under the same company, from a foreign country to America. Because often the transfer results in a permanent position for the L visa holder, the company usually files a EB based green card for the employee as well. Because of this, the USCIS views L visa as dual intent and that if the visa holder files for green card at any time, it is OK. If the L visa holder attempts to re-enter the country after a green card application has been filed, that is OK too.

V Visas, O Visas, P Visa an E Visas

The V, O, P, and E visas and their dependent versions are all considered dual intent. These visas, however, are not common. V visas are for spouses and dependents of a US permanent resident to come to America to join the US permanent resident while their green card is pending. However, these visas are practically non existent because it is only issued for those who filed a I-130 before December 21, 2000. The O visas are for people who are extraordinary in their professions, like Nobel Prize winners, Olympic athletes, etc. These people can immigrate to America with ease because of their talents and achievements. America wants the best people and will give green card to those who demonstrate it. The P visas are for famous celebrities, entertainers, movie stars, athletes to visit and stay in America if they wish. Lastly, the E visas are for serious investors who will invest large sums of money in American corporations or startups. They are usually the ultra wealthy and probably don’t want to immigrate to America because of tax reasons.

In conclusion, depending on what visa you entered America with, you have to be careful with your immigration applications and intentions. If you did not enter America on any of the visas listed above, you have to be really careful in attempting to file any immigration application. If you enter as a non-immigrant and try to outsmart USCIS and file for permanent immigration, chances are you will be denied. The only exceptions are the dual intent visas above, and you may breath a sigh of relief if you have one of the above visas and are undergoing a green card application.

Every year, thousands of hopeful skilled workers hold their breaths for the H-1B visa process starting April 1st of every year. When the economy is good, like the one we are in right now at the time of writing (4/6/14), there are likely more workers seeking H-1B visas than the quota and the USCIS resorts to a lottery system in which only luck determines if a foreigner can stay and work in America. When the economy is bad, although it would be hard to get jobs, the H-1b visa quota does not get filled and everyone who applies have one. This is a catch-22 situation for hopeful foreigners who want to stay in America and earn the high wages that they cannot possibly obtain in their home country doing the same job.

This year, without exception, the USCIS published a general guideline outlining the H-1B visa process on their website in the News section: http://www.uscis.gov/news/uscis-accept-h-1b-petitions-fiscal-year-2015-beginning-april-1-2014

What the USCIS has outlined is the following (which should not come as a shock for anyone):

Start date of accepting H-1B visa applications: April 1, 2014

Congressional mandated cap: 65,000 ( meaning only 65,000 visas will be issued, regardless of how many applications)

Advanced Degrees (individuals with a US Master’s Degree) cap: 20,000 (the first 20,000 advanced degree holders are not subjected to the 65,000 cap)

USCIS reports that they anticipate more applications than visas for this year.

The final deadline to file H-1B applications: April 7, 2014

A random lottery selection process will be used if more applications are received than available visas

A high level of premium processing applications is anticipated (this is a guaranteed 15 calendar day processing for approved/selected applications)

There are also a few minor things that can be extrapolated from the news release:

Premium processing start time will be no later than April 28, 2014. This means that those who are selected can have their applications begin processing if they paid extra for the premium service.

If your employer filed for premium processing, you should not travel outside the country from April 28 thru May 13 because you might get your H-1B visa at that time.

Regular processing is likely to be delayed 3-5 months because the USCIS will concentrate their efforts on processing the premium applications first.

All in all, this is a tough year for foreigners who want to work in America. Large companies such as Tata, Infosys will likely pay for the premium processing since they can earn more money if their workers are working in America. It is not an easy year to get a visa, which is a tough break for those who finally secured a job but is not able to get the H-1B visa this year due to the competition. As Clint said it before: